Rethinking the 'Less as More' Thesis: Supranational Litigation of Economic, Social and Cultural Rights in the Americas

Abstract

In their 2005 law review article Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, James Cavallaro and Emily Schaffer argue for a "rethinking" of strategies to advance economic, social and cultural rights in the Americas. They posit that to achieve higher rates of real-world protection for such rights, social rights advocates should do two things: first, bring less litigation and, second, frame any marginal litigation that is pursued as violations of classic civil and political rights. According to the authors, this recommended course will increase the "legitimacy" of the litigation and lead to higher rates of real-world change because, in their estimation, only civil-political rights have corresponding "justiciable" obligations and are considered "ripe" for litigation by Latin American governments. This Article questions the legal and factual bases on which this thesis is constructed, highlighting the practical inconsistencies that result from its application and advocating a more technical and jurisdictional approach to social rights litigation. It demonstrates that, by underappreciating the legal significance of "justiciability," "legitimacy," and the adjudicable, as distinct from monitorable, dimensions of human rights obligations, the authors propose a thesis that in fact will have the inverse result: more "distributive justice" claims framed as "absolute/immediate" entitlements that are inattentive to justiciability rules, political realities, practical implementation time-tables, queue-jumping concerns, and social movement synergies - precisely the types of cases that are least likely to be admissible under contentious processes or to have long-term real-world impacts.

The author calls for a rethinking of the proposed "less as more" thesis, reframing it from a technical-jurisdictional perspective that focuses not on decontextualized notions of "justiciable rights" but rather on the scope and nature of the claims made under those rights. In this sense, she insists that it is not rights that are or are not justiciable, but rather the claims advanced under them that fulfill or fail to fulfill the elements of a justiciable controversy. The number of "justiciable claims" thus cuts equally across all rights. On this critical understanding, the author sets out a new quadrant-based framework for thinking about the dimensions of human rights obligations that may properly be applied by adjudicators in individual petitions processes. She argues that while the full dimensionality of human rights obligations corresponds to all rights, only some of those dimensions are cognizable under contentious process, an insight reflected in the jurisprudential record, if not yet recognized in human rights theory. The author concludes that good lawyering, based on well-crafted claims that adhere to the fundamental elements of a justiciable case, not transparent decoys designed to hoodwink governments into thinking they are dealing with "immediately-enforceable" civil and political rights, is needed to expand legitimate protection of economic, social, and cultural rights in the Americas. Once jurisdictional issues are properly taken into account, the horizon for social rights litigation, both at national and supranational levels, is vast.

Melish, Tara J., Rethinking the 'Less as More' Thesis: Supranational Litigation of Economic, Social and Cultural Rights in the Americas. New York University Journal of International Law and Politics (JILP), Vol. 39, p. 1, 2006. Available at SSRN: https://ssrn.com/abstract=955920

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